Summary
In Fleming v. Smart, 153 So.2d 748, 749 (Fla. D. Ct. App. 1963), the court held that a plaintiff, whose legs were broken when defendant backed up his automobile after stopping on the way to a church sale, and after plaintiff had gotten out of defendant's automobile to assist a motorist who had run out of gas, was a "guest passenger" within the guest statute, in view of the fact the trip had not been concluded at the time defendant stopped.
Summary of this case from Newcomb Hospital v. FountainOpinion
No. 62-725.
May 28, 1963.
Appeal from the Circuit Court, Dade County, George E. Schulz.
Reynolds Larotonda, Miami, for appellant.
Dean, Adams Fischer and Talbot W. Trammell, Miami, for appellee.
Before PEARSON, TILLMAN, C.J., and CARROLL and HORTON, JJ.
The appellant, plaintiff below, appeals an adverse final summary judgment. The question involved here is whether or not the appellant was a guest passenger within the purview of § 320.59, Fla. Stat., F.S.A.
The facts, which appear to be without material conflict, are that the appellant and appellee were proceeding from a cafe, intending to ultimately attend a church sale. While en route, with the appellant driving the appellee's car, they stopped to assist a motorist who had run out of gas. While attempting to refuel the disabled car, the appellant and appellee went to the rear of appellee's automobile. However, the appellee proceeded around to the driver's side of his own automobile, entered, started it up, and, through some unexplained maneuver, caused it to back up, striking the appellant and breaking his legs.
The Florida guest statute § 320.59, supra, provides:
"No person transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action * * * unless such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator of such motor vehicle * * *." [Emphasis supplied.]
It is clear from the facts in this case that the appellant was a nonpaying guest and that the accident which resulted in his injuries occurred before the transportation was concluded. See Fishback v. Yale, Fla. 1955, 85 So.2d 142. Consequently, since the appellant does not contend that the appellee was guilty of gross negligence, the summary judgment entered was proper.
Accordingly, the judgment appealed is affirmed.